USA v. Agbune et alMEMORANDUM OF LAWS.D.N.Y.November 28, 2007Lance Croffoot-Suede Brendan J. Murphy Linkiaters LLP 1345 Avenue of the Arnericas New York, NY 10105 212 903 9000 (Tel) 212 903 9 100 (Fax) Attorneys for Linda Loving UNITED STATES DISTRICT COURT SOUTHFRN DISTRICT 0F NEW YORK The United States of America, Plaintiffs,i 07 -cr-00395-PAC v. Linda Loving,i Defendants. SENTENCING MIEMORANDUM ON BEIIALE 0F LINDA LOVING A086661 1710.0a128 Nov 2007 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 1 of 9 Linda Loving ("Ms. Loving"), by lier undersigned attomneys, Linidaters LLP, respectfùlly submits this Sentencing Memorandum (the "Memorandum"), and tlie attaclied exhibits, bo assist Ibis Court in determining ber sentence ai the sentencing hearing scheduled for December 5, 2007. The purpose of tbis Memorandum is 10 apprise the Court of a number of factors relevant 10 tlie detennination of an appropriate sentence under the provisions of the United States Senîencing Guidelines ("U.S.S.G." or "Guidelines"). On August 9, 2007 Ms. Loving signed a plea agreement with the United States Attomney's Office for the Soutbern District of New York (the "Plea Agreement") and pied guilty before Ibis Court bo tbeft of public funds "in violation of 18 U. S. C. § § 641 and 642. On November 28, 2007 the Probation Office submitted ils Presentence Investigation Report ("PSR"). (Ex. A). As set forth in the Plea Agreement and the PSR, Ms. Loving's applicable sentencing range is 0 - 6 months, lier applicable fine range is $ 1,000 to $ 10,000 and she is required 10 pay restitution. For ail the reasons set 'forth herein, the defense requesîs that Ms. Loving receive a sentence of probation and be ordered 10 pay nominal restitution. RACKGROUND Ms. Loving's story is as simple as il is short. At a lime in bier life when she was struggling 10 pay lier bUis and provide for lier son, Ms. Loving succumbed 10 temptation. She was presented with an illegal opportunity 10 supplement lier income and, unfortunateiy, she seized tbe opportunity. Ms. Loving regrets lier decision, understands wliaî slie did was wrong and takes fuill responsibility for ber actions. Linda Loving was born on February 16, 1958 in Brooklyn, NY. She was one of three bilidren born 10 Edward Loving and Nancy Dutton. Aithougli Ms. Loving's faîlier did not play a role in lier life, she was raised in a stable and loving environmenî. Ms. Loving went on 10 graduate from Theodore Rooseveit Higli Scbool "in tbe Bronx, NY. She then pursued an A086661 1710.0aJ28 Nov 2007 2 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 2 of 9 undergraduate education aud obtained a bachelor's degree in accounting at Merey College in the Bronx, NY. Since then, Ms. Loving lias consistently been gainfully employed. Aller working as a bookkeeper in the accounts department of Master Trouser Corporation for five years, and the U. S. Postal Service for ten years, Ms. Loving gathered lier life savingys and decided to begin a real estate business in 1998. Ms. Loving lias been a real estate broker in New York for approximately ten years. 11cr business lias focused primarily on lielping low income renters or liomeless women mn the Bronx locate suitable housing. Ms. Loving worked with New York City's Housing Stabîlity Plus Program and other federal and state programns aimed. at inducing landiords to lease a certain number of housing units to people of modest means. In 1997, Ms. Loving gave bù-th to James Loving Thomas, lier only ehild. "[Ms. Loving] and James have a very close relationship." (Ex. B). Ms. Loving and James's father neyer marricd and James's father lias neyer played any role in lis life, financial or otlierwise. Ms. Loving lias been the -sole caregiver and provider for James since bis birtli. James is not tlie only person wlio depends upon Ms. Loving. Tlie people in Ms. Loving's life describe lier as a caring and patient woman whose supportive nature and generosity of spirit have lielped tliem througli the small and large problems of tleir lives. Ms. Dejesus, suffering fromn an ailinent that leaves lier witli an unusable foot, explains iliat Ms. Loving "is one of the rare people in [lier] life that [she] can cail on to assist [lier]" witli grocery shopping ôr volunteer work at lier churcli. (Ex. A). Ms. Loving's mother, Nancy Loving, also describes liow invaluable Ms. Loving's positive energy and caring personality is to lier. (Ex. E). Nat Dixon explains how Ms. Loving's counsel and friendship lielped him focus lis life and bis energies ini A086661 17/0.0a128 Nov 2007 3 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 3 of 9 more constructive directions, whule Marilyn Malloy stresses how Ms. Loving has always brought hope and positive energy into hier life no niatter how difficuit or dire the situation. (Exs. C, F). L. CJRCUMSTANCES SURROIJNJING THE INSTANT OFFENSE AND FACTORS RELEVANT TO DETERMINING THE SENTENCE A. The Instant Offense On May 17, 2007 Ms. Loving was arrested and arraigned for thefi of public funds mn violation of 18 U.S.C. §§ 641 and 642. Ms, Loving and her codefendant, Rapheal Agbune, embezzled $25,750O in Housing Stabilîty Plus subsidies by falsely claiming that Ms. Loving acted as a broker at certain real estate transactions. Ms. Loving was appointed counsel by the court and released on hier own recognizance. On August 9, 2007, Ms. Loving pied guilty to thefi of public fisnds in violation of 18 U.S.C. §§ 641 arnd 642 before this Court. B. Offense Level Computation The calculation of the offense level was conducted 'in accordance with the November 1, 2006 edition of the U.S.S.G. The Base Offense Level for a violation of 18 U.S.C. 641 is six points, pursuant to U.S.S.G. §2B1. 1. Since the loss caused by Ms. Loving's actions exceeded $1 0,000, a four level increase is applied, pursuant to §2B 1. 1 (b)( 1)(C). Based on Ms. Loving's allocution before this Court accepting responsibility for lier actions and lier timely notification of lier intention to plead guilty, Ms. Loving is entitled to a downward adjustment of two levels pursuant to §3E 1. 1(a). Consequentiy, the total offense level for the instant offense is eiglit. Ms. Loving lias no prior criminal conviction of any kind and therefore qualifies for the lowest possible criminal. history category, i. . Crimînal History Category I. In accordance witli a Total Offense Level of eiglit and a Criminal History Category of 1, Ms. Loving is eligible for O - 6 months in prison. A086661 17/0.0a/28 Nov 2007 4 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 4 of 9 11. MS. LOVING SHOULD BE SENTENCED TO A TERM 0F PROBATION A defendant is probation eligible when their applicable guideline range is in Zone A of the sentencing table. U.S.S.O. § 5B1. 1(a)(l). Probation is a suitable alternative to imprisonment when -... the terms and conditions of probation can be fashioned so as to meet fislly the statutory purposes of sentencing, including promoting respect for the law, providing just punishrnent for the offense, achieving general deterrence and protecting the public from further crimes by the defendant." U.S.S.O. Part B3- Probation, Introductory Commentary. Ms. Loving agrees with the PSR's recomimendation of probation in lieu of anyjail dîne. (Ex. A). In fact, few cases could be more appropriate for probation than Ms. Loving's. As an initial matter, with a Total Offense Level of eiglit and a Criminal I-istory Category off1, she is within Zone A of the Sentencing table and therefore probation eligible. As for the statutory considerations when iînposing probation instead of prison - punisbment, deterrence and protection of the public- any combination of terms or conditions of probation would satis&y these requirements. As for punishment, in addition to the punitive nature of the termis and conditions of probation, Ms. Loving's plea carries a harsh sentence, i.e. the potential loss of lier career. A guilty plea to thefi of public funds in connection with a real estate transaction may very well end Ms. Loving's career as a real estate agent and force lier, at 50 years of age, to seek an alternate career. Ms. Loving poses no danger to the public. Apart from this offense, for which she lias accepted responsibility and expressed complete reniorse, she lias no criminal history whatsoever. A fifiy year old mother of a mmior chuld attempting to, earn a living poses no threat to the public. A086661 17/0.0a128 Nov 2007 5 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 5 of 9 Lastly, and most important, Ms. Loving is the sole caregiver and provider for ber son James. James is a briglit young boy whom. Ms. Loving is trying to steer througb school and life on ber own. A jail sentence would place ùnmeasurable stress on James and punisb hlm for bis mother's bad decisions. A sentence of probation, bowever, will allow lier to continue to be a fmnancial and familial support for James wbile at the samne time serving a price for lier criminal activity.' HII. A FINE IS NOT APPROPRIATE FOR MS. LOVING Under the (luidelines, Ms. Loving's offense level is 8 (see Section LB, above), making lier eligible for a fme ofbetween $l,OOO and $lO,OOO. SeeU.S.S.G. §5E1.2(c)(3)(A). Ms. Loving agrees witli tlie PSR's recommiendation of no fmne. (Ex. A at 14). The Guidelines, however, pro vide that, "if the defendant establishes tliat (1) slie is not able and, even with the use of a reasonable instaliment scbedule, is flot likely wo become able to pay ail or part of the fmne required by the Guidelines, or (2) imposition of a fine would unduly burden the defendant's dependants, the court may impose a lesser fine or waive the fine." U.S.S.G. § 5E1.2(e). The Guidelines also require the Court to consider an order to pay restitution when deciding if a fine is necessary. U.S.S.G. § 5E1.2(d)(4). As set forth above and in lier PSR, Ms. Loving bas no assets and very unite income net of lier necessary expenses. Furtliermore, as a resuit of lier plea of guilty, Ms. Loving will most likely lose lier ability to continuing selling real estate or renting apartments. lmposing a fine lin addition to any restitution this Court may order is out of step with Ms. Loving 's ability to pay and would unnecessarily burden lier ability to provide for herseif and lier minor son. Should the Court feel thai the purposes of sentencing expressed in 18 U.S.C. § 3553(a) and the lnlroductory Cornrenitary to Part B - Probation are not met by a terni of probation, Ms. Loving is axnoeable to any of the Additional Conditions expressed ini U.S.S.G. § 5B1.3(e)(l)-(5) or any otter con(iition in kcepîng wîth U.S.S.G. § 5B 1.3(b) in prcfecricnc to rncarceration. A086661 17/0.0a128 Nov 2007 6 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 6 of 9 As a further indication of Ms. Loving's present and future inability to pay a fmne, Ms. Loving was appointed counsel in ibis case. As the Commentary to the Guidelines States, "the fact that a defendant is represented by assigned counsel [is a] significant indicator of present ability to pay any fmne. In conjunction with other factors, [it] may also indicate that the defendant is flot likely to become able to pay any fine." U.S.S.G. § 5E 1.2 (Commentary Note 3). If the Court decides that Ms. Loving is flot entitled to complete waiver of a fmne, we respectfully submit that the Court should substitute an alternative sanction of eommuuhîy service. Pursuant 10 U.S.S.C. § 5El .2(e), this Court may consider alternative sanctions 'Lin lieu of ail or a portion of the fmne" and "coînmunity service is the generally preferable alternative 'in such instances." IV. MS. LOVLNG'S PAYMENT 0F RESTITUTION SHOULD BE NOMINAL Ms. Loving is required 10 pay restitution "in accorclance with 18 U.S.C. 3663A and 18 U.S.C. 3664. Jrowever, the Guidelines do not require the Court 10 order restitution for the fu11 amount aI issue. As set out in U. S. S.G. § SEl. 1 (f), "A restitution order may direct the defendant to mate nominal periodic payments if the court finds fromn the facts on the record that the economic circumnstances of the defendant do not allow the payment of any amount of a restitution order and do not allow for the payment of the fu11 amount of a restitution order in the foreseeable future under any reasonable schedule of payments." Ln 1995, in considering what was 10 become the Mandatory Victim. Restitution Act, 18 U.S.C. § 3663A, the Senate Conimittee on the Judiciary was of the view that even &'nominal restitution payments" serve "the potential penalogical [sic] benefits of requiring the offender 10 be accountable ....". S. Rep. 104-179, at 18 (1995), reprinted in 1996 U.S.C.C.A.N. 924, 931. A08666117/0.0&128 Nov 2007 7 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 7 of 9 Ms. Loving 's financial. situation does not allow for the full payment of restitution at this time nor under any reasonable schedule of payments. By pleading guilty, Ms. Loving likely bas eliminated ber ability to continue with ber real estate business. As sucli, in the comning months, Ms. LovMig is going to struggle to start a new career and rebuild her financial situation at the age of 50. Burdening lier with a joint and several order for $25,750 in restitution would needlessly impede lier rehabilitation and quite possibly prevent lier recovery altogether. A monthly nominal payment of $50 for the terni on lier probation would stress the severity of lier crime and allow tlie Housing Stability Plus Program to regain a portion of its lost funds, whule at 2 the saine tirne balancing lthe impact a restitution order would have on Ms. Loving and lier son. 2 If ibis Court deannines an order of restitution ini excess of nominal restitution is appropriate, Ms. Loving rcqucsts ffiat the Court allow for as extended a payrnenî paiod as allowable imder 18 U.S.C. § 3664 (e)(3)(a). A086661 1710.0a/28 Nov 2007 8 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 8 of 9 CONCLUSION For the reasons set forth above, Ms. Loving respectfùlly requests that the Court impose a sanction min hume with the PS R and sentence Ms. Loving 10 probation and require nominal restitution. Dated: Ncw York, New York November 28, 2007 Respectfhully submitted, Lin.klaters LLP By.-à Lance Cro16ý-ud Brendan J. Murphy 1345 Avenue of the Americas, 19'h floor New York, NY 10 105 (212) 903-9000 (212) 903-9100 (fax) Attorneys for Linda Loving A086661 17/0.0a128 Nov 2007 9 Case 1:07-cr-00395-PAC Document 20 Filed 11/28/2007 Page 9 of 9
